National Insurance Company Ltd v. Vakil Paswan

1. The appeal is directed against the judgment dated 06.03.2007 passed by the Motor Accident Claims Tribunal (the Claims Tribunal) whereby compensation of `33,000/- was awarded in favour of Respondent no.1 and the Appellant National Insurance Company Limited was made liable to pay the compensation.

2. The learned counsel for the Appellant urges that vehicle no.DL- 1G-9273 which was involved in the accident was not insured with 2015:DHC:1746 the Appellant and, therefore, the Appellant had no liability at all to pay the compensation.

3. I have the Trial Court Record before me. In the Claim Petition filed by Respondent no.1, Respondnet no.2, Nemi Chand was claimed to be the owner and driver of the offending vehicle. In written statement filed by Respondent no.2 Nemi Chand(owner and driver), the involvement of the vehicle itself was denied. In reply to para 17 of the Claim Petition, it was stated that the vehicle was insured with Respondent no.3 (National Insurance Company Limited). However, in the Claim Petition, there was no Respondent no.3. Appellant National Insurance Company Limited was Respondent no.2. In any case, even if it is taken as a clerical error and it is assumed that Respondent no.2 referred the National Insurance Company Limited as the insurer, yet Respondent no.2 did not come forward or place on record any cover note or the Insurance policy issued in respect of the vehicle, to prove his averment particularly in view of the specific plea taken by the Appellant that the offending vehicle is not insured with it at all.

4. In para 1 of the preliminary objections, it was specifically stated by the Appellant that vehicle no.DL-1G-9273 alleged to be involved in the accident is not at all insured with the Appellant. Although, Nemi Chand (Respondent no.2 herein) contested the Claim Petition but he preferred not to file any rejoinder or any reply to the written statement filed by the Appellant stating that the plea raised by the Appellant is untenable and the vehicle was insured with the Appellant only.

5. During the course of inquiry before the Claims Tribunal, the Appellant examined Anil Kumar Sharma, its Branch Manager as R2W[1] who produced the cover note and the insurance policy issued on the basis of the cover note no.0744937. It was the duty of Respondent no.2 to have come forward with the original cover note which was in his power and possession and to confront the Appellant Insurance Company. Respondent no.2 further ought to have stated as to how the premium was paid by him to the Appellant Company.

6. The Claims Tribunal dealt with the issue of liability in para 18 of the impugned judgment, which is extracted hereunder:-

7. The Claims Tribunal was swayed by the fact that the cover note number was left blank in the policy produced on record by Respondent no.2. The Claims Tribunal preferred not to consider the case of the Appellant set up since the very beginning that the cover note placed on record by the Petitioner was not issued by them and that the vehicle was not insured with them at all.

8. It was a clear case of fraud being played by Respondent no.2 himself or by somebody upon whom he relied. If any agent of the Appellant was involved, it was for Respondent no.2 to have come forward and explain as to how he obtained the cover note as these facts were specially within the knowledge of Respondent no.2. Unless it was proved that an authorised agent of the Appellant Insurance Company was a party to the fraud, the Appellant could not have been made liable to pay the compensation at all.

9. Respondent no.2 has not even come forward to contest the appeal.

10. In view of the foregoing discussion, the appeal has to be allowed and it is held that the Appellant Insurance Company is not liable to pay the compensation.

11. By order dated 18.05.2007 of this Court, execution of the award against the Appellant was stayed. Since the Appellant has no liability, there is no question of execution of the judgment against it.

12. Respondent no.1 shall be entitled to enforce the judgment against Respondent no.2.